WASHINGTON – President Obama is facing a new legal challenge to three recess appointments he made to the National Labor Relations Board earlier this month. Mark Mix, President of the National Right to Work Legal Defense Foundation (NRWLDF), says the president's actions have created "a constitutional crisis."
Mix, and others critical of the appointments, say Obama has stepped beyond the powers granted to the executive branch. They argue that since the Senate remained in session throughout the holidays, he had no authority to make recess appointments. Mix adds, "I think what he said is, 'I don't care what the Constitution says here, process be damned, I'm going to do what I want.'"
The White House is relying on a memo from the Justice Department issued Jan. 6, two days after the appointments were made. The memo, authored by Assistant Attorney General Virginia Seitz, states that the president "may properly determine that the Senate is not available under the Recess Appointments Clause when, while in recess, it holds pro forma sessions where no business can be conducted."
Some constitutional experts are backing President Obama, including Ian Millhiser of the Center for American Progress. According to Millhiser, "Someone showing up for thirty seconds, they hit the gavel twice, and then they're gone - that's not a real Senate session."
The practice was started by Senate Majority Leader Harry Reid (D-NV) during the final two years of then-President George W. Bush's second term. Reid said on Sunday that it won't work for Republicans this time around, instead predicting that President Obama's recent recess appointments will withstand legal challenges.
But critics are pointing to another legal memo from the Justice Department that they claim is in conflict with the one issued Jan. 6 - and it comes from one of Obama's allies. In 2010, then-Solicitor General, now Supreme Court Justice Elena Kagan authored a letter to the Supreme Court Clerk's Office with respect to recess appointments. While noting the president does have authority to make such appointments, Kagan added "... the Senate may act to foreclose this option by declining to recess for more than two or three days at a time..." In her Jan. 6th memo, Seitz addressed the 2010 Kagan memo and determined that it was not on point.
A number of additional business groups are joining with NRWLDF to ask that a federal judge, who is already hearing a related case involving the parties, add their new objection to the recess appointments to the existing case. There is no timeframe for a ruling.